Citation Nr: 0015075
Decision Date: 06/08/00 Archive Date: 06/15/00
DOCKET NO. 94-49 504 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Whether new and material evidence has been submitted to
reopen the veteran's claim for entitlement to service
connection for an acquired psychiatric disorder (diagnosed as
paranoid schizophrenia).
REPRESENTATION
Appellant represented by: James W. Stanley, Jr.,
Attorney at Law
WITNESS AT HEARING ON APPEAL
Appellant, his mother and his wife
ATTORNEY FOR THE BOARD
L. M. Barnard, Counsel
INTRODUCTION
The veteran served on active duty from September 1972 to
April 1974.
The issue of whether new and material evidence has been
presented to reopen the claim for service connection for a
psychiatric disorder was previously before the Board of
Veterans' Appeals (Board) in February 1991, at which time it
was found that the veteran had not presented sufficient new
and material evidence to warrant reopening his claim.
This appeal arose from a May 1995 rating decision of the
North Little Rock, Arkansas, Department of Veterans Affairs
(VA), Regional Office (RO), which denied entitlement to the
benefit noted above. In April 1996, the veteran, his mother
and his wife testified at a personal hearing at the RO; in
March 1997, the hearing officer issued a decision which
refused to reopen the claim for service connection for a
psychiatric disorder.
On September 26, 1997, the Board issued a decision which
refused to reopen the veteran's claim for service connection
for a psychiatric disorder, finding that no new and material
evidence had been presented. On October 6, 1998, a Joint
Motion for Remand was filed, which requested that this denial
be vacated and the issue remanded to the Board for
consideration pursuant to the holding of Hodge v. West, 155
F.3d 1356 (Fed. Cir. 1998). On July 21, 1999, the United
States Court of Appeals for Veterans Claims (known as the
United States Court of Veterans Appeals prior to March 1,
1999)(hereinafter "the Court"), issued an order that
vacated the September 1997 Board decision denying reopening
of the claim for service connection for a psychiatric
disorder and which remanded the case to the Board for
readjudication consistent with its order. Copies of the
Joint Motion for Remand and the Court's Order have been
placed in the claims file.
FINDINGS OF FACT
1. The Board denied the veteran's claim to reopen the claim
for service connection for paranoid schizophrenia in February
1991.
2. Additional evidence submitted since that time fails to
show that the veteran's paranoid schizophrenia either began
in service or manifested to a compensable degree within one
year of his separation.
CONCLUSION OF LAW
Evidence received since the Board last denied the veteran's
claim to reopen his claim for entitlement to service
connection for a psychiatric disorder in February 1991 is not
new and material, and the 1991 decision of the Board is thus
final and is not reopened. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113, 5107(a), 7104(b) (West 1991); 38 C.F.R. §§ 3.156(a),
3.307, 3.309, 20.1105 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the applicable law clearly states that, when a
claim is disallowed by the Board of Veterans' Appeals, it may
not thereafter be reopened and allowed, and no claim based
upon the same factual basis shall be considered. 38 U.S.C.A.
§ 7104(b) (West 1991). However, when a claimant requests
that a claim be reopened after an appellate decision and
submits evidence in support thereof, a determination as to
whether such evidence is new and material must be made. 38
U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1105 (1999).
"New and material evidence" means evidence not previously
submitted to agency decisionmakers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in conjunction with evidence previously assembled
is so significant that it must be considered in order to
fairly decide the merits of the claim. 38 C.F.R. § 3.156(a)
(1999).
Under the applicable criteria, service connection may be
granted for a disability the result of disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1110
(West 1991).
Where a veteran has served for 90 days or more during a
period of war and a psychosis becomes manifest to a degree of
10 percent within one year from the date of termination of
such service, such disease shall be presumed to have been
incurred in service, even though there is no evidence of such
disease during the period of service. This presumption is
rebuttable by affirmative evidence to the contrary. 38
U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307,
3.309 (1999).
The evidence which was of record when the Board last
considered this case in 1991 will be briefly summarized. The
service medical records revealed that the veteran was
psychiatrically normal at the time of entrance onto active
duty in January 1972. In March 1974, he was seen for a
psychiatric evaluation. The diagnosis was no psychiatric
illness found. The April 1974 separation examination also
found him to be psychiatrically normal.
The veteran was hospitalized between September and October
1976. He had been sent for a psychiatric evaluation in June
1976, after he began to have difficulties with co-workers and
supervisors. A diagnosis had been made of paranoid
schizophrenia, which was supported by psychological testing.
The mental status examination noted disjointed and pressured
speech. He was circumstantial but he denied hallucinations.
His thinking was concrete. He was originally placed on
Haldol; this was changed to Prolixin Decanoate. The
diagnosis was latent schizophrenia. A counseling
psychologist stated in July 1976 that the veteran's failure
to follow through with the claims process right after
discharge could have been due to his thought disorder. It
was then indicated that this psychologist's first contact
with the veteran had occurred in June 1976.
A rating issued in February 1977 originally denied service
connection for paranoid schizophrenia, finding that it was
not present in service, nor to a compensable degree within
one year of discharge.
The veteran continued to be treated for schizophrenia; he was
hospitalized in October 1979. He reported that he was
suffering from side-effects of his medication; some
Parkinsonian symptoms due to phenothiazines were noted. The
examiner doubted that the veteran was actually suffering from
schizophrenia, noting that he had done very well on a
minimal, noneffective dose. In fact, his symptoms cleared
spontaneously, without medication. The diagnosis was
paranoid personality.
A letter written by the Acting Personnel Physician in October
1976 was then submitted. It was indicated that the
schizophrenia was first diagnosed in June 1976. It was also
opined that this was present in the veteran's service,
although a rationale for this opinion was not provided.
Alcohol abuse and a paranoid personality were diagnosed
during an August 1980 VA hospitalization and paranoid
schizophrenia was diagnosed during an April 1981 VA
examination. Service connection was again denied by a rating
action issued in July 1981.
A March 1982 VA examination diagnosed undifferentiated
schizophrenia. He displayed ideas of reference and possible
perceptive disorders. In November 1983, the Board denied
service connection for a psychiatric disorder, finding that
no such disorder was present in service or to a compensable
degree within one year of discharge. Following this denial,
the veteran submitted numerous outpatient treatment records
that reflected treatment for his paranoid schizophrenia in
the 1980's and early 1990's; he also submitted several
duplicates of the July and October 1976 statements from VA
physicians. A VA counseling psychology note from March 1990,
referred to some excessive detailing, tangentiality, and
questionable reasoning, but no delusional conceptualization.
There was no overt paranoid ideation, though he was
suspicious of the VA adjudication process. He was totally
focused on getting service connection for his psychiatric
problems.
The evidence submitted since the 1991 refusal by the Board to
reopen included the report of a March 1991 VA examination.
This found that his speech was fluent, logical, coherent and
goal directed. His mood was slightly dysphoric and his
affect was somewhat blunted. His thought processes were
clear and his memory was functional. The diagnosis was
paranoid schizophrenia. He was hospitalized at a VA facility
in December 1991 for his paranoid schizophrenia. He stated
that he was hearing voices that were telling him to kill
himself. At the time of admission, he denied experiencing
hallucinations, his mood was depressed and his affect was
flat. A July 1993 VA examination noted that he was quite
underactive and preoccupied. He was tense, but his speech
was normal. His thought processes appeared to be normal,
although there were possible delusions present. He was
depressed and anxious. Paranoid schizophrenia was diagnosed.
He also submitted duplicates of the July and October 1976
statements from VA physicians.
In April 1996, the veteran, his mother and his wife testified
at a personal hearing at the RO. He stated, and his mother
corroborated, that he had had no psychiatric problems prior
to service. In service, he commented that he had not related
well with the other soldiers, that he tended to isolate
himself. He was sent to a psychiatrist after he reported to
duty out of uniform. He testified that he began to hear
voices during service, and he had a fear that others were
after him. He stated that he could not recall anyone ever
telling him in service that he had schizophrenia. His mother
commented that she noticed a change in his behavior after his
return from service. He indicated that he began to have
trouble with his supervisors when he worked at the VA
following his discharge. He was sent to a psychiatrist in
June 1976, and paranoid schizophrenia was diagnosed. His
wife, who had been married to the veteran for three years,
stated that he often talked to himself and was occasionally
violent.
The veteran was examined by VA in May 1996. His mood was
neutral and his affect was somewhat blunted. There was no
looseness of association and no confusion. His memory was
grossly intact and he was alert and oriented in three
spheres. Auditory and visual hallucinations were reported
and delusional material was quite prominent. He also
displayed ideas of reference and persecutory ideation. The
diagnosis was paranoid schizophrenia.
VA personnel records included health records from 1974 to
1980. His pre-employment physical, conducted in September
1974, revealed no abnormalities. An August 1975 evaluation
noted that his work was satisfactory. There was no mention
between September 1974 and April 1975 of any psychiatric
complaints.
The veteran was hospitalized at a VA facility from September
19 to October 31, 1997, after experiencing suicidal
ideations, auditory hallucinations and paranoia. He had been
drinking several beers per day and had also used cocaine. He
had also stopped taking his Haldol. He had begun to
deteriorate and reported trouble sleeping, feelings of
depression and decreased energy. He reported that he had
begun to hear voices in 1972 while in service. The mental
status examination noted that he had no abnormal movements.
His speech was normal in rate. His affect demonstrated
flattened range and his mood was mildly depressed. His
thoughts were goal directed and he displayed no looseness of
associations. There was no evidence of delusions or
hallucinations. The Axis I diagnoses were paranoid
schizophrenia, alcohol and cocaine dependence and substance
mood disorder.
VA outpatient treatment records from April 1997 to June 1998
showed that on February 18, 1998 he was still using both
alcohol and cocaine. He was noted to be doing well on his
medications. A mental status examination conducted on June
16, 1998 noted that he was pleasant until being told
something that he did not want to hear; then he became short.
He was goal directed and understandable. About two months
before, he had heard voices at night that said derogatory
things about him. He had little insight into his problem.
After a review of the complete record, it is found that the
additional evidence which the veteran has submitted is not
"new and material." Accordingly, his claim is not reopened
and the Board's 1991 decision remains final.
"New" evidence means more than evidence which was not
previously physically of record. To be "new," additional
evid0ence must be more than merely cumulative. Colvin v.
Derwinski, 1 Vet. App. 171 (1991). The additional evidence
presented in this case is merely cumulative. The evidence
which was previously of record showed that there was no
diagnosis of a psychiatric disorder in service, and that the
veteran was first diagnosed with paranoid schizophrenia in
June 1976, more than two years after his separation from
service. The records submitted after the 1991 Board denial
show nothing new. While many were not physically of record
prior to the 1991 denial, this is not enough to render it
"new" evidence. This additional evidence did not establish
that paranoid schizophrenia existed during service, or
manifested to a compensable degree within one year after
separation. Rather, this evidence merely continues to
demonstrate that schizophrenia was not diagnosed until June
1976. While he and his mother have stated that his behavior
had begun to alter in service, and that he had had problems
immediately after separation from service, he has submitted
no objective evidence to confirm these statements. Moreover,
as laypersons, they are not qualified to provide an opinion
as to medical diagnosis. Espiritu v. Derwinski, 2 Vet. App.
492 (1992).
Because the veteran has not submitted new evidence, he has
not fulfilled the requirement of presenting "new and
material" evidence to reopen his claim for service
connection for paranoid schizophrenia. Since it has been
determined that no new evidence has been submitted, no
further analysis is needed, for the evidence could not be
"new and material" if it is not new. Smith v. West, 12
Vet. App. 312 (1999).
ORDER
New and material evidence not having been presented to reopen
the claim for entitlement to service connection for paranoid
schizophrenia, the benefit sought on appeal is denied.
C. P. RUSSELL
Member, Board of Veterans' Appeals